Mike Sellick Trust (Pty) Ltd v Ethekwini Municipality (7651/2007) [2014] ZAKZDHC 66 (3 September 2014)

Mike Sellick Trust (Pty) Ltd v Ethekwini Municipality (7651/2007) [2014] ZAKZDHC 66 (3 September 2014)

The court held that any agreement to set-off rates liability against hiring charges due by the municipality is invalid and unenforceable in law, as set-off cannot operate against debts owed to the State. On the issue of prescription, the court found that the applicant's claim for the return of equipment is based on the rei vindicatio, which is not subject to the three-year prescriptive period for debts under the Prescription Act, but rather the thirty-year period applicable to acquisitive prescription. The court accepted the reasoning in Staegmann v Langenhoven and Bester N.O. v Schmidt Bou Ontwikkelings CC, which support the view that vindicatory claims are not extinguished after three...

Citation
[2014] ZAKZDHC 66
Parties
Applicant: Mike Sellick Trust (Pty) Ltd; Respondent: Ethekwini Municipality
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
3 September 2014
Case Number
7651/2007
Procedural Posture
Special Plea / Ruling on Special Plea Prior to Trial
Outcome
Special plea dismissed; matter to proceed to trial on the merits, excluding set-off.
Judges
M R Chetty
Legal Topics
Prescription Act, Rei Vindicatio, Set Off, Rates Liability, Lease Agreement
Civil Procedure Land and Property Prescription Act Rei Vindicatio Set Off Rates Liability Lease Agreement

Case Brief

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Parties

Mike Sellick Trust (Pty) Ltd

Applicant

Ethekwini Municipality

Respondent

Procedural Posture

Special Plea / Ruling on Special Plea Prior to Trial

Legal Issues

  1. 1 Whether the plaintiff's claim for the return of equipment and accounting for rates liability is prescribed under the Prescription Act.
  2. 2 Whether an agreement to set-off rates liability against hiring charges is valid and enforceable in law.

Ratio Decidendi

The court held that any agreement to set-off rates liability against hiring charges due by the municipality is invalid and unenforceable in law, as set-off cannot operate against debts owed to the State. On the issue of prescription, the court found that the applicant's claim for the return of equipment is based on the rei vindicatio, which is not subject to the three-year prescriptive period for debts under the Prescription Act, but rather the thirty-year period applicable to acquisitive prescription. The court accepted the reasoning in Staegmann v Langenhoven and Bester N.O. v Schmidt Bou Ontwikkelings CC, which support the view that vindicatory claims are not extinguished after three...

Court Disposition

Special plea dismissed; matter to proceed to trial on the merits, excluding set-off.

Orders

  • The special plea raised by the defendant is dismissed with costs.